Preview
FILED: CORTLAND COUNTY CLERK 11/18/2014 11:45 AM INDEX NO. EF14-553
NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/18/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF CORTLAND
STATE OF NEW YORK and the NEW YORK
STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION,
Plaintiffs, Index No. - - - - - -
- against -
JAMES C. STEVENS, III,
Defendants.
PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION
FOR A PRELIMINARY INJUNCTION
ERIC T. SCHNEIDERMAN
Attorney General of the
State of New York
Attorney for Plaintiffs
Environmental Protection Bureau
The Capitol
Albany, New York 12224
Michael J. Myers
Joseph M. Kowalczyk
Assistant Attorneys General
Of Counsel
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................... .ii
PRELIMINARY STATEMENT ..................................................................................... 1
STATEMENT OF FACTS ............................................................................................. 3
Environmental Conservation Law Violations ......................................................... 3
Substantial Damage Caused by Project Discharges .............................................. .4
Likelihood of Additional Damage ............................................................................. 6
Necessary Corrective Measures will not Pose a
Significant Burden .................................................................................................... 7
ARGUMENT
THE STATE IS ENTITLED TO A PRELIMINARY
INJUNCTION DIRECTING STEVENS TO IMMEDIATELY
CEASE VIOLATING THE ENVIRONMENTAL
CONSERVATION LAW AND TO ABATE A NUISANCE ........................................... 8
1. The State is Entitled to a Preliminary Injunction
Requiring Stevens to Immediately Cease and Desist
from Violating ECL Article 17 ............................................................................ 8
2. The State is Entitled to a Preliminary Injunction
Requiring Stevens to Immediately Abate a Public Nuisance .......................... 10
3. The State also Meets the Traditional Three-Prong Test
for Injunctive Relief. .......................................................................................... 13
The State will likely succeed on the merits ................................................ 13
The injury that the State seeks to enjoin is irreparable ............................ 14
The equities favor the State ........................................................................ 15
CONCLUSION ............................................................................................................. 17
1
TABLE OF AUTHORITIES
Page(s)
CASES
532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Ctr., Inc.,
96 N.Y.2d 280 (2001) .............................................................................................. 10
Adirondack Park Agency v. Hunt Brothers Contrs., Inc.,
234A.D.2d 737 (3d Dep't 1996) ...................................................................... 9,13,16
Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531 (1987) ................................................................................................. 15
Boomer v. Atlantic Cement Co.,
26 N.Y.2d 219 (1970) .............................................................................................. 17
City of Johnstown v. Water Pollution Control Board of the State of New York,
12 A.D.2d 218 (3d Dep't 1961) ................................................................................ 12
City of New York v. Bilynn Realty Corp.,
118 A.D.2d 511 (1st Dep't 1986) ............................................................................... 8
Copart Industries, Inc. v. Consolidated Edison Co.,
41 N.Y.2d 564 (1977) .............................................................................................. 10
Destiny USA Holdings, LLC v. Citigroup Global Mkts. Realty Corp,
69 A.D.3d 212 (4th Dep't 2009) ......................................................................... 14,16
Doe v. Axelrod,
73 N.Y.2d 748 (1988) .............................................................................................. 13
Emerald Green Prop. Owners Assn. v. Jada Developers, LLC,
63 A.D.3d 1396 (3d Dep't 2009) ......................................................................... 13,14
Green Harbour Homeowners Assn., Inc. v. Ermiger,
67 A.D.3d 1116 (3d Dep't 2009) .............................................................................. 14
J.A. Preston Corp. v. Fabrication Enterprises, Inc.,
68 N.Y.2d 397 (1986) .............................................................................................. 13
Kossoff v. Rathgeb-Walsh, Inc., et al.,
3 N.Y.2d 583 (1958) ................................................................................................ 11
11
TABLE OF AUTHORITIES
Page(s)
Lew Beach Co. v. Carlson,
57 A.D.3d 1153 (3d Dep't 2008) .............................................................................. 13
Little Joseph Realty v. Town of Babylon,
41 N.Y.2d 738 (1977) .............................................................................................. 17
Long v. Sage Estate Homeowners Assoc. Inc., et al.,
16 A.D.3d 963 (3d Dep't 2005) ................................................................................ 11
Metropolitan Package Store Association v. Koch,
80 A.D.2d 940 (3d Dep't 1981) ................................................................................ 15
New York v. Brookhaven Aggregates,
121A.D.2d440 (2d Dep't 1986) ................................................................................ 9
New York v. Kings County Iron Foundry,
209 N.Y. 207 (1913) ........................................................................................... 11,12
New York v. Monaco Oil Co.,
185 Misc. 2d 7 42 (Sup. Ct. Monroe Co. 2000) ..................................................... 8, 17
New York v. Rubenfeld,
254 N.Y. 245 (1930) ................................................................................................ 11
New York v. Sour Mtn. Realty, Inc.,
276 A.D.2d 8 (2d Dep't 2000) .................................................................................... 9
Osgood v. Bucking-Reddy,
202 A.D.2d 920 (3d Dep't 1994) .............................................................................. 11
Peterson v. Corbin,
275 A.D.2d 35 (4th Dep't 2000) .............................................................................. 13
Seitzman v. Hudson River Associates,
126 A.D.2d 211 (1st Dep't 1987) ............................................................................. 16
Town of Throop v. Leema Gravel Beds,
249 A.D.2d 970 (4th Dep't 1998) .............................................................................. 8
Tucker v. Toia,
54 A.D.2d 322 (4th Dep't 1976) ............................................................................. 13
111
TABLE OF AUTHORITIES
Page(s)
FEDERAL STATUTES
United States Code ("U.S.C.")
33 U.S.C. 1251, et seq ............................................................................................... 8
42 U.S.C. § 1342 ...................................................................................................... 15
STATE STATUTES
Civil Practice Law and Rules ("C.P.L.R.")
§ 6301 ...................................................................................................................... 13
Environmental Conservation Law ("E.C.L.")
§ 3-0301(1) ·············································································································· 16
Article 17 ......................................................................................................... passim
§ 17-0101 ................................................................................................................. 16
Article 17 Title 8 ....................................................................................................... 8
§ 17-0803 ......................................................................................................... passim
§ 17-0808 ......................................................................................................... 9,10,15
§ 71-1929 ............................................................................................................. 2,8,9
§ 71-1931 ............................................................................................................. 2,8,9
Executive Law
§ 63(12) ······················································································································ 2
STATE REGULATIONS
Official Compilation of New York State Codes, Rules, and Regulations
("N.Y.C.R.R.")
6 NYCRR Part 750 ................................................................................................. 1,8
6 NYCRR § 750-1.4 ......................................................................................... passim
lV
PRELIMINARY STATEMENT
The State brings this action to protect the public health, welfare and
environment of New York, to abate a nuisance and enjoin James C. Stevens, III,
(Stevens) from continuing violations of the Environmental Conservation Law (ECL)
and Part 750 of the New York Codes, Rules, and Regulations (NYCRR) at property
located on Ridgeview Avenue in the Town of Cortlandville, County of Cortland (the
Site). The Site consists of approximately 113 acres of undeveloped farm land which
is bounded on the south by St. Mary's Cemetery, located at 4101 West Road,
Cortlandville, New York (St. Mary's). Stevens has undertaken excavating and
construction activities diverting stormwater away from the Site (the Project) and
onto St. Mary's Cemetery and New York State Route 281 (Route 281). Stevens'
violations of ECL Article 17, Water Pollution Control, include the unpermitted
discharge of stormwater from construction activity, failure to implement a
stormwater pollution prevention plan (SWPPP), and the discharge of stormwater
that has harmed and will continue to harm public welfare and the environment.
The State is seeking a preliminary injunction to immediately abate the ECL
violations and associated harm.
In June 2014, DEC issued a Notice of Violation (NOV) to Stevens for the
continuing unlawful discharge of pollutants to the waters of the state without a
State Pollutant Discharge Elimination System (SPDES) permit in violation of ECL
§ 17-0803 and 6 NYCRR § 7 50-1.4. The NOV expressly directed Stevens to
immediately comply with the requirements of ECL § 17 -0803 and 6 NYCRR § 7 50-
1
1.4. Pursuant to ECL §§ 71-1929 and 71-1931, the State is entitled to injunctive
relief requiring Stevens to immediately cease discharging stormwater from the Site
until either a SPDES permit or coverage under a DEC General Permit with a
SWPPP is obtained.
Stevens' actions have interfered with, and caused damage to the public in the
exercise of rights common to all and that injures the property, comfort, health,
safety, and environment of a considerable number of persons. Stevens' acts,
omissions, and violations of the law, including ECL Article 17 and the regulations
promulgated thereunder concerning stormwater management constitute a public
nuisance per se. In this motion, the State is seeking a preliminary injunction
requiring Stevens to immediately cease and desist from violating ECL Article 17
and to abate a public nuisance.
The Attorney General is authorized by Executive Law § 63(12) to bring an
action for injunctive relief and damages against any person engaging in persistent
illegality, including abatement of a public nuisance. Additionally, the State has
statutory authority to enforce the ECL provisions involved in this matter can
demonstrate that Stevens has violated the ECL. Thus, under the applicable
standard for granting a preliminary injunction, the State's established authority to
enforce the laws and regulations at issue and its prima facie showing that Stevens
continues to violate those laws entitle the State to a preliminary injunction.
Even if the Court applies the traditional three-prong test for granting a
preliminary injunction, the State meets all three elements and a preliminary
2
injunction should issue regardless of what test the Court applies. Finally, the
State's requested interim relief is both necessary and tailored to stem the harm
from Stevens' ECL violations.
STATEMENT OF FACTS
Environmental Conservation Law Violations
During 2012, Stevens, or persons acting on his behalf, engaged in extensive
clearing, grading, excavating and construction activities involving soil disturbances
on more than one acre of land and created a pond, a pond outfall, an outlet channel,
and a stone apron outlet on the Site. Affidavit of Scott Cook, sworn to on October 31,
2014 (Cook Aff.), ir 4; See Affidavit of Donald W. Lake Jr., P.E., sworn to on October
30, 2014 (Lake Aff.) ir 7.
The Project redirected the drainage flow pattern of approximately 120 acres
of land that had previously drained to the west. This redirected flow now drains into
the newly created pond, out the pond outfall, into an outlet channel that flows along
the southern boundary of the Site to the east, onto a stone apron at the southeast
corner of the Site, and then discharges downslope into the gully on the northern
boundary of St Mary's Cemetery. Lake Aff., ii 8.
Stevens has failed to implement a SWPPP providing for compliance with the
State's SPDES General Permit for Storm Water Discharges Pursuant to titles 7 and
8 of ECL Article 17. Moreover, although a SPDES stormwater permit was required
prior to commencement of the Project, Stevens did not obtain such a permit. Cook
Aff., irir5, 6.
3
In June 2014, DEC issued a NOV to Stevens. The NOV informed Stevens
that he continued to be in violation ofECL § 17-0803 and 6 NYCRR § 750-1.4
regarding the unlawful discharge of pollutants to the waters of the state from an
outlet without a SPDES permit. The NOV further directed Stevens to comply
immediately with ECL § 17-0803 6 NYCRR § 750-1.4. Cook Aff., Exh. 4. Stevens has
failed to correct the violations described in the DEC NOV. Cook Aff., ir 15.
Substantial Damage Caused by Project Discharges
St. Mary's cemetery is affiliated with three Roman Catholic parishes serving
hundreds of families. These parishes are St. Mary's in Cortland, St. Margaret's in
Homer, and St. Anthony of Padua in Cortland. There have been approximately
11,000 burials in St. Mary's cemetery, including 73 in 2011, 68 in 2012 and 65 in
2013. In addition to families of the deceased who have been buried at St. Mary's
cemetery, other residents of Cortland and the surrounding area visit the cemetery
while attending funerals or otherwise paying their respects to the deceased. Verified
Complaint, irir42, 43.
Stormwater discharges from the Project cut onto St. Mary's Cemetery, before
flowing downslope to Route 281. Cook Aff., ir 4. As a direct result of the stormwater
violations, discharges from the Project have caused significant erosion downslope on
the adjacent St. Mary's Cemetery property. There are no effective flow reduction
controls in place on the Site and the erosion has deepened and widened an existing
ditch and substantially damaged the St. Mary's Cemetery property. Cook Aff., ir 9;
Lake Aff., ir 10. The stormwater runoff from the Site is not only causing severe
4
erosion along the northern boundary of St. Mary's cemetery, but adversely
impacting Route 281. Lake Aff., if 9.
In May 2014, Catholic Cemeteries of the Roman Catholic Diocese (Catholic
Cemeteries) informed DEC that the erosion caused by stormwater runoff from the
Site forced the Cemetery to disinter and move two bodies in early May 2014 and
four bodies during the week of May 26, 2014. Catholic Cemeteries further informed
DEC that two additional bodies would be disinterred and moved in the near future
and that there will be others as well. In May 2014, DEC staff inspected the Site and
observed there were no erosion or sediment controls in place and turbid stormwater
runoff from the Project was causing severe erosion of St. Mary's property,
overwhelming the DOT stormwater infrastructure and flooding State Route 281.
Verified Complaint, if if
35-36.
The flow of stormwater from the Site has not only transported sediment,
gravel and dirt from the Site causing significant soil erosion on the St. Mary's
property, the discharges have also opened the sides of monumented graves. The
Project's illegal stormwater discharges have also desecrated other grave sites at St.
Mary's by covering them with debris. The damage to St. Mary's Cemetery is
disturbing to family members and friends of the people buried there, to the
parishioners of St. Mary's, St. Margaret's and St. Anthony of Padua, and to other
residents of Cortland and the surrounding area. Verified Complaint, irir 44-47.
In May 2014, stormwater discharges were observed by DEC staff as traveling
along the Project outlet channel on the southern boundary of the Site and then
5
discharging from the stone apron outlet downslope into a gully on St. Mary's
Cemetery. This stormwater discharge was down cutting the land and flowing onto
the cemetery grounds. The stormwater flow from the Site was so heavy that it was
eroding and enlarging an existing drainage ditch, undercutting trees and shrubs,
washing away soil from the foundations of several grave sites, and spreading debris
on the cemetery grounds. The stormwater flow from the Site also displaced a large
tree. On May 16, 2014, the highly turbid stormwater discharges were also flowing
across Bellview Avenue and completely inundating the Route 281 stormwater
collection system. The stormwater at this location flows through a culvert and into
Tributary 2A of the West Branch Tioughnioga River, water index No. Sr-44-14-60-
2a and Class "C." Cook Aff., if if12, 13
Stevens' continuing refusal to comply with ECL Article 17 and failing to take
appropriate steps to mitigate the impacts of the Project's stormwater discharges
demonstrate a complete disregard for the DEC regulatory program designed to
protect waters of the state. See Cook Aff., if 16.
Likelihood of Additional Damage
If corrective measures are not implemented, stormwater will continue to flow
from the Site and cause additional damage to adjacent and nearby properties. Cook
Aff., if 18. The continued flow of water from the Project will cause additional
damage, including greater erosion of the gully that has been deepened and widened
by stormwater discharges since the Project was constructed. Lake Aff., if if11, 16.
6
Unmitigated stormwater discharges from the Site will also continue to cause safety
concerns at St. Mary's Cemetery and on Route 281. See Cook Aff., ii 18.
Necessary Corrective Measures will not Pose a Significant Burden
To prevent the ongoing erosion and flood damage caused by the Project, the
storm water runoff from the 120 acre drainage area should be redirected back into
its original existing channel and toward the west. This will allow the runoff to
infiltrate into the ground and recharge the groundwater aquifer as it did prior to
construction of the Project. Lake Aff., ii 12. Restoring the drainage flow pattern
back to its original configuration can be accomplished by earth grading to reverse
the current flow direction, plugging or removing the pond outlet piping, and
eliminating the outlet channel downstream of the pond by compacting earth fill to
the top of its banks. As discussed in the expert report attached to the Lake Aff. as
Exhibit 1, this work can be accomplished for less than $10,000 (ten thousand
dollars). Lake Aff., ir 13.
Construction of the Project has not benefited Stevens in any identifiable way
and Stevens will not suffer any harm (other than incurring excavation and
construction costs) if he is required to abate the damage by restoring the drainage
flow pattern back to its original configuration. See Lake Aff., ii 15.
7
ARGUMENT
THE STATE IS ENTITLED TO A PRELIMINARY INJUNCTION
DIRECTING STEVENS TO IMMEDIATELY CEASE VIOLATING THE
ENVIRONMENTAL CONSERVATION LAW AND TO ABATE A NUISANCE
1. The State is Entitled to a Preliminary Injunction Requiring Stevens
to Immediately Cease and Desist from Violating ECL Article 17.
The usual three-prong test for injunctive relief does not apply when the basis
of the nuisance is a violation of statute or regulation. New York v. Monaco Oil Co.,
185 Misc.2d 742, 750 (Sup. Ct. Monroe Co. 2000) (citing Town of Throop v. Leema
Gravel Beds, 249 A.D.2d 970 (4th Dep't 1998)); City of New York v. Bilynn Realty
Corp., 118 A.D.2d 511 (1st Dep't 1986)).
The State is entitled to a preliminary injunction here because it has the
authority to enforce the ECL and has made a prima facie showing that Stevens
violated the law. ECL §§ 71-1929 and 71-1931 authorize the State to bring an action
for an injunction against any person violating ECL Article 17, including 6 NYCRR
Part 750. By the statute's plain language, the State has the authority to bring an
action to enjoin Stevens' actions and the State therefore satisfies the first prong of
the test for injunctive relief. The stated purpose of ECL Article 17 Title 8 is to
insure that all discharges of pollutants are permitted and meet all applicable
requirements of the Federal Water Pollution Control Act, known as the Clean
Water Act (33 U.S.C. 1251, et seq.). This objective is in part achieved through the 6
NYCRR § 750-1.4 permitting program which ensures that DEC has an opportunity
to oversee discharges to the waters of the state from any outlet. By failing to apply
for a permit and refusing to comply with Article 17, Stevens' violations of law are
8
undermining the stated purpose of the ECL Article 17, Title 8 permitting program.
Cook Aff., if 17.
Where the ECL authorizes the State to enjoin an ongoing violation, as it does
here, the State is not required to show irreparable injury. See New York v.
Brookhaven Aggregates, 121 A.D.2d 440, 442 (2d Dep't 1986). The State need only
demonstrate that it has the authority to enforce the law at issue and make a prima
facie showing that the defendant has violated the law. See New York v. Sour Mtn.
Realty, Inc., 276 A.D.2d 8, 15-16 (2d Dep't 2000) (aprima facie showing that
defendant violated the state Endangered Species Act was "sufficient to show
irreparable harm" and therefore grant a preliminary injunction). The Third
Department has expressly held that when the State has statutory authority to
enjoin a violation, it is not necessary to show special damages or injury to the
public as a condition to injunctive relief; evidence of commission of the prohibited
acts is sufficient. Adirondack Park Agency v. Hunt Bros. Contrs., Inc., 234 A.D.2d
737, 738 (3d Dep't 1996). Thus, because ECL §§ 71-1929 and 71-1931 provide the
authority to enjoin violations of the ECL Article 17, a violation of that law is
sufficient to show irreparable harm and tip the equities in favor of the State, and
the State need not establish all three elements of the traditional test for granting a
preliminary injunction. See Sour Mtn. Realty, Inc., 276 A.D.2d at 15-16.
The second element in the applicable test for granting a preliminary
injunction to the State is a prima facie showing that Stevens has violated the laws
that the State seeks to enforce. ECL § 17-0808 and 6 NYCRR § 750-1.4 prohibit the
9
construction of ponds, outlet channels, outfalls and other point sources that convey
untreated stormwater without a DEC approved SWPPP. Stevens' failure to obtain
either an individual or a general permit prior to constructing the Project that
carries stormwater discharge is a continuing violation of ECL § 17-0808 and of 6
NYCRR § 750-1.4. Based on the facts set forth in the accompanying affidavit of
Scott Cook and the Verified Complaint, the State has established the Stevens'
violations of the ECL provisions regulating stormwater discharges. Cook Aff., if ii
6,
14-16.
ECL § 17-0803 and 6 NYCRR § 750-1.4 prohibit the discharge of stormwater
to any water of the State from any point source without a SPDES permit. Stevens'
stormwater diversion Project has resulted in discharges of storm water mixed with
sediment from the Site onto adjacent properties including St. Mary's and Route 281
and ultimately to the waters of the state. Cook Aff., iril12-14. Thus, Stevens'
activities are violations of ECL Article 17, and the State therefore satisfies the
applicable test for injunctive relief.
2. The State is Entitled to a Preliminary Injunction Requiring Stevens
to Immediately Abate a Public Nuisance.
A public nuisance includes conduct that is endangering or injuring the
property, health, safety or comfort of a considerable number of persons. 532
Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (2001);
Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 568 (1977). A
public nuisance is subject to prosecution by the proper governmental authority for
abatement. Copart Industries, Inc., 41 N.Y.2d at 568; 532 Madison Ave. Gourmet
10
Foods, Inc., 96 N.Y.2d at 292.
It is well settled in New York that for a nuisance to constitute a public
nuisance, the phrase "considerable number of persons" does not mean a very great
number of persons. New York v. Kings County Iron Foundry, 209 N.Y. 207, 210
(1913); and New York v. Rubenfeld, 254 N.Y. 245, 247 (1930). Here, the affidavits of
Scott Cook and Donald Lake make the prima facie case that discharges from the
stormwater diversion Project are endangering or injuring the property, health,
safety or comfort of a considerable number of persons. Cook Aff., ii 9; Lake Aff., iii!
9, 10. This harm associated with the unlawful stormwater discharges flowing onto
adjacent and nearby properties is endangering a considerable number of persons in
the use of St. Mary's Cemetery and Route 281. Verified Complaint, iii! 42, 43; Lake
Aff., if 9.
Stevens is liable for the damages caused by the unlawful stormwater
discharges from the Project onto St. Mary's Cemetery and Route 281 because an
abutting landowner is liable for the change in surface water flow associated with a
pipe or a drainage ditch causing erosion. See Kossoff v. Rathgeb-Walsh, Inc., et al., 3
N.Y.2d 583, 588 (1958); and Osgood v. Bucking-Reddy, 202 A.D.2d 920, 921 (3d
Dep't 1994). In fact, excavation activities alone that change or increase the flow of
surface water and thereby cause damage to abutting property can trigger liability.
Long v. Sage Estate Homeowners Assoc. Inc., et al., 16 A.D.3d 963, 975 (3d Dep't
2005).
11
Moreover, in December 2013, it was conclusively determined that St. Mary's
Cemetery "was substantially damaged by runoff' from the Site. See Affirmation of
Assistant Attorney General Joseph M. Kowalczyk, sworn to on the 13th day of
November, 2014 (Kowalczyk Affirmation), Exhibit 2 - Catholic Cemeteries of the
Roman Catholic Diocese vs. James C. Stevens, III., Decision And Order Dated
December 16, 2013 (Hon. Phillip R. Rumsey). The harm caused by the unlawful
Project discharges to St. Mary's Cemetery is disturbing to family members and
friends of the people buried there, to the parishioners of St. Mary's, St. Margaret's
and St. Anthony of Padua, and to other residents of Cortland an'd the surrounding
area. Verified Complaint iii! 44-47. The harm caused by the stormwater diversion
Project also extends to people traveling along Route 281. It is sufficient that the
unlawful stormwater discharges from the Project have affected a considerable
number of persons in the area of the Site. City of Johnstown v. Water Pollution
Control Board of the State of New Yorh, 12 A.D.2d 218, 219 (3d Dep't 1961). For
purposes of determining whether a nuisance is a public nuisance, travelers on a
highway of a sparsely settled country town and those on a busy city street are
equally a considerable number of persons. Kings County Iron Foundry at 210. Here,
the State has shown that on at least one occasion during the past several months,
the stormwater discharges associated with the Project caused flooding of Route 281,
impeding use of the road.
12
3. The State also Meets the Traditional Three-Prong Test for Injunctive
Relief.
There is ample precedent for applying the applicable test described above,
when, as here, the State seeks to enjoin statutory violations. See, e.g., Hunt Bros.
Contrs., Inc., 234 A.D.2d at 737-38. However, even if the Court were to apply the
traditional test for granting injunctive relief, the State would nonetheless satisfy all
elements of that test. Well-settled law dictates that a preliminary injunction should
issue when the plaintiff demonstrates: i) a likelihood of success on the merits; ii)
irreparable injury absent granting of the injunction; and iii) a balancing of the
equities favors the movant. See CPLR § 6301; Doe v. Axelrod, 73 N.Y.2d 748, 750
(1988); Emerald Green Prop. Owners Assn. v. Jada Developers, LLC, 63 A.D.3d
1396, 1397 (3d Dep't 2009).
The State will likely succeed on the merits
The first element that a plaintiff must establish in an action for preliminary
injunction is likelihood of success on the merits. The purpose of a preliminary
injunction is to maintain the status quo pending a decision on the merits in order to
prevent unlawful harm that might otherwise arise. See Lew Beach Co. v. Carlson,
57 A.D.3d 1153, 1155-56 (3d Dep't 2008). The moving parties need only make a
prima facie showing of their right to relief, they do not need to prove the case.
Tucl?er v. Toia, 54 A.D.2d 322, 326 (4th Dep't 1976); see J.A. Preston Corp. v.
Fabrication Enters., Inc., 68 N.Y.2d 397, 406 (1986); Peterson v. Corbin, 275 A.D.2d
35, 37 (4th Dep't 2000).
13
Here, the State has made more than a prima facie showing that it is likely to
succeed on the merits. It can't be disputed that Stevens constructed the stormwater
diversion Project without a SWPPP and has discharged stormwater into a drainage
ditch and ultimately the waters of the state without a SPDES permit. As set forth
above, these acts and omissions are straight forward violations of ECL Article 17
and the applicable regulations. As set forth above, Stevens' failure to obtain a
permit prior to constructing the Project, failure to implement a DEC approved
SWPPP, and the discharges of stormwater violate ECL Article 17 and 6 NYCRR §
750-1.4. Cook Aff., iii! 12-16. Moreover, even if there were questions of fact for trial,
this wouldn't preclude the court from granting an injunction. Emerald Green v.
Jada at 1397.
The injury that the State seeks to enjoin is irreparable
The second element that a plaintiff must establish in an action for
preliminary injunction is irreparable harm. The tes
Preview
FILED: CORTLAND COUNTY CLERK 11/18/2014 11:45 AM INDEX NO. EF14-553 NYSCEF DOC. NO. 5 RECEIVED NYSCEF: 11/18/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF CORTLAND STATE OF NEW YORK and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Plaintiffs, Index No. - - - - - - - against - JAMES C. STEVENS, III, Defendants. PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Plaintiffs Environmental Protection Bureau The Capitol Albany, New York 12224 Michael J. Myers Joseph M. Kowalczyk Assistant Attorneys General Of Counsel TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................... .ii PRELIMINARY STATEMENT ..................................................................................... 1 STATEMENT OF FACTS ............................................................................................. 3 Environmental Conservation Law Violations ......................................................... 3 Substantial Damage Caused by Project Discharges .............................................. .4 Likelihood of Additional Damage ............................................................................. 6 Necessary Corrective Measures will not Pose a Significant Burden .................................................................................................... 7 ARGUMENT THE STATE IS ENTITLED TO A PRELIMINARY INJUNCTION DIRECTING STEVENS TO IMMEDIATELY CEASE VIOLATING THE ENVIRONMENTAL CONSERVATION LAW AND TO ABATE A NUISANCE ........................................... 8 1. The State is Entitled to a Preliminary Injunction Requiring Stevens to Immediately Cease and Desist from Violating ECL Article 17 ............................................................................ 8 2. The State is Entitled to a Preliminary Injunction Requiring Stevens to Immediately Abate a Public Nuisance .......................... 10 3. The State also Meets the Traditional Three-Prong Test for Injunctive Relief. .......................................................................................... 13 The State will likely succeed on the merits ................................................ 13 The injury that the State seeks to enjoin is irreparable ............................ 14 The equities favor the State ........................................................................ 15 CONCLUSION ............................................................................................................. 17 1 TABLE OF AUTHORITIES Page(s) CASES 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (2001) .............................................................................................. 10 Adirondack Park Agency v. Hunt Brothers Contrs., Inc., 234A.D.2d 737 (3d Dep't 1996) ...................................................................... 9,13,16 Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531 (1987) ................................................................................................. 15 Boomer v. Atlantic Cement Co., 26 N.Y.2d 219 (1970) .............................................................................................. 17 City of Johnstown v. Water Pollution Control Board of the State of New York, 12 A.D.2d 218 (3d Dep't 1961) ................................................................................ 12 City of New York v. Bilynn Realty Corp., 118 A.D.2d 511 (1st Dep't 1986) ............................................................................... 8 Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564 (1977) .............................................................................................. 10 Destiny USA Holdings, LLC v. Citigroup Global Mkts. Realty Corp, 69 A.D.3d 212 (4th Dep't 2009) ......................................................................... 14,16 Doe v. Axelrod, 73 N.Y.2d 748 (1988) .............................................................................................. 13 Emerald Green Prop. Owners Assn. v. Jada Developers, LLC, 63 A.D.3d 1396 (3d Dep't 2009) ......................................................................... 13,14 Green Harbour Homeowners Assn., Inc. v. Ermiger, 67 A.D.3d 1116 (3d Dep't 2009) .............................................................................. 14 J.A. Preston Corp. v. Fabrication Enterprises, Inc., 68 N.Y.2d 397 (1986) .............................................................................................. 13 Kossoff v. Rathgeb-Walsh, Inc., et al., 3 N.Y.2d 583 (1958) ................................................................................................ 11 11 TABLE OF AUTHORITIES Page(s) Lew Beach Co. v. Carlson, 57 A.D.3d 1153 (3d Dep't 2008) .............................................................................. 13 Little Joseph Realty v. Town of Babylon, 41 N.Y.2d 738 (1977) .............................................................................................. 17 Long v. Sage Estate Homeowners Assoc. Inc., et al., 16 A.D.3d 963 (3d Dep't 2005) ................................................................................ 11 Metropolitan Package Store Association v. Koch, 80 A.D.2d 940 (3d Dep't 1981) ................................................................................ 15 New York v. Brookhaven Aggregates, 121A.D.2d440 (2d Dep't 1986) ................................................................................ 9 New York v. Kings County Iron Foundry, 209 N.Y. 207 (1913) ........................................................................................... 11,12 New York v. Monaco Oil Co., 185 Misc. 2d 7 42 (Sup. Ct. Monroe Co. 2000) ..................................................... 8, 17 New York v. Rubenfeld, 254 N.Y. 245 (1930) ................................................................................................ 11 New York v. Sour Mtn. Realty, Inc., 276 A.D.2d 8 (2d Dep't 2000) .................................................................................... 9 Osgood v. Bucking-Reddy, 202 A.D.2d 920 (3d Dep't 1994) .............................................................................. 11 Peterson v. Corbin, 275 A.D.2d 35 (4th Dep't 2000) .............................................................................. 13 Seitzman v. Hudson River Associates, 126 A.D.2d 211 (1st Dep't 1987) ............................................................................. 16 Town of Throop v. Leema Gravel Beds, 249 A.D.2d 970 (4th Dep't 1998) .............................................................................. 8 Tucker v. Toia, 54 A.D.2d 322 (4th Dep't 1976) ............................................................................. 13 111 TABLE OF AUTHORITIES Page(s) FEDERAL STATUTES United States Code ("U.S.C.") 33 U.S.C. 1251, et seq ............................................................................................... 8 42 U.S.C. § 1342 ...................................................................................................... 15 STATE STATUTES Civil Practice Law and Rules ("C.P.L.R.") § 6301 ...................................................................................................................... 13 Environmental Conservation Law ("E.C.L.") § 3-0301(1) ·············································································································· 16 Article 17 ......................................................................................................... passim § 17-0101 ................................................................................................................. 16 Article 17 Title 8 ....................................................................................................... 8 § 17-0803 ......................................................................................................... passim § 17-0808 ......................................................................................................... 9,10,15 § 71-1929 ............................................................................................................. 2,8,9 § 71-1931 ............................................................................................................. 2,8,9 Executive Law § 63(12) ······················································································································ 2 STATE REGULATIONS Official Compilation of New York State Codes, Rules, and Regulations ("N.Y.C.R.R.") 6 NYCRR Part 750 ................................................................................................. 1,8 6 NYCRR § 750-1.4 ......................................................................................... passim lV PRELIMINARY STATEMENT The State brings this action to protect the public health, welfare and environment of New York, to abate a nuisance and enjoin James C. Stevens, III, (Stevens) from continuing violations of the Environmental Conservation Law (ECL) and Part 750 of the New York Codes, Rules, and Regulations (NYCRR) at property located on Ridgeview Avenue in the Town of Cortlandville, County of Cortland (the Site). The Site consists of approximately 113 acres of undeveloped farm land which is bounded on the south by St. Mary's Cemetery, located at 4101 West Road, Cortlandville, New York (St. Mary's). Stevens has undertaken excavating and construction activities diverting stormwater away from the Site (the Project) and onto St. Mary's Cemetery and New York State Route 281 (Route 281). Stevens' violations of ECL Article 17, Water Pollution Control, include the unpermitted discharge of stormwater from construction activity, failure to implement a stormwater pollution prevention plan (SWPPP), and the discharge of stormwater that has harmed and will continue to harm public welfare and the environment. The State is seeking a preliminary injunction to immediately abate the ECL violations and associated harm. In June 2014, DEC issued a Notice of Violation (NOV) to Stevens for the continuing unlawful discharge of pollutants to the waters of the state without a State Pollutant Discharge Elimination System (SPDES) permit in violation of ECL § 17-0803 and 6 NYCRR § 7 50-1.4. The NOV expressly directed Stevens to immediately comply with the requirements of ECL § 17 -0803 and 6 NYCRR § 7 50- 1 1.4. Pursuant to ECL §§ 71-1929 and 71-1931, the State is entitled to injunctive relief requiring Stevens to immediately cease discharging stormwater from the Site until either a SPDES permit or coverage under a DEC General Permit with a SWPPP is obtained. Stevens' actions have interfered with, and caused damage to the public in the exercise of rights common to all and that injures the property, comfort, health, safety, and environment of a considerable number of persons. Stevens' acts, omissions, and violations of the law, including ECL Article 17 and the regulations promulgated thereunder concerning stormwater management constitute a public nuisance per se. In this motion, the State is seeking a preliminary injunction requiring Stevens to immediately cease and desist from violating ECL Article 17 and to abate a public nuisance. The Attorney General is authorized by Executive Law § 63(12) to bring an action for injunctive relief and damages against any person engaging in persistent illegality, including abatement of a public nuisance. Additionally, the State has statutory authority to enforce the ECL provisions involved in this matter can demonstrate that Stevens has violated the ECL. Thus, under the applicable standard for granting a preliminary injunction, the State's established authority to enforce the laws and regulations at issue and its prima facie showing that Stevens continues to violate those laws entitle the State to a preliminary injunction. Even if the Court applies the traditional three-prong test for granting a preliminary injunction, the State meets all three elements and a preliminary 2 injunction should issue regardless of what test the Court applies. Finally, the State's requested interim relief is both necessary and tailored to stem the harm from Stevens' ECL violations. STATEMENT OF FACTS Environmental Conservation Law Violations During 2012, Stevens, or persons acting on his behalf, engaged in extensive clearing, grading, excavating and construction activities involving soil disturbances on more than one acre of land and created a pond, a pond outfall, an outlet channel, and a stone apron outlet on the Site. Affidavit of Scott Cook, sworn to on October 31, 2014 (Cook Aff.), ir 4; See Affidavit of Donald W. Lake Jr., P.E., sworn to on October 30, 2014 (Lake Aff.) ir 7. The Project redirected the drainage flow pattern of approximately 120 acres of land that had previously drained to the west. This redirected flow now drains into the newly created pond, out the pond outfall, into an outlet channel that flows along the southern boundary of the Site to the east, onto a stone apron at the southeast corner of the Site, and then discharges downslope into the gully on the northern boundary of St Mary's Cemetery. Lake Aff., ii 8. Stevens has failed to implement a SWPPP providing for compliance with the State's SPDES General Permit for Storm Water Discharges Pursuant to titles 7 and 8 of ECL Article 17. Moreover, although a SPDES stormwater permit was required prior to commencement of the Project, Stevens did not obtain such a permit. Cook Aff., irir5, 6. 3 In June 2014, DEC issued a NOV to Stevens. The NOV informed Stevens that he continued to be in violation ofECL § 17-0803 and 6 NYCRR § 750-1.4 regarding the unlawful discharge of pollutants to the waters of the state from an outlet without a SPDES permit. The NOV further directed Stevens to comply immediately with ECL § 17-0803 6 NYCRR § 750-1.4. Cook Aff., Exh. 4. Stevens has failed to correct the violations described in the DEC NOV. Cook Aff., ir 15. Substantial Damage Caused by Project Discharges St. Mary's cemetery is affiliated with three Roman Catholic parishes serving hundreds of families. These parishes are St. Mary's in Cortland, St. Margaret's in Homer, and St. Anthony of Padua in Cortland. There have been approximately 11,000 burials in St. Mary's cemetery, including 73 in 2011, 68 in 2012 and 65 in 2013. In addition to families of the deceased who have been buried at St. Mary's cemetery, other residents of Cortland and the surrounding area visit the cemetery while attending funerals or otherwise paying their respects to the deceased. Verified Complaint, irir42, 43. Stormwater discharges from the Project cut onto St. Mary's Cemetery, before flowing downslope to Route 281. Cook Aff., ir 4. As a direct result of the stormwater violations, discharges from the Project have caused significant erosion downslope on the adjacent St. Mary's Cemetery property. There are no effective flow reduction controls in place on the Site and the erosion has deepened and widened an existing ditch and substantially damaged the St. Mary's Cemetery property. Cook Aff., ir 9; Lake Aff., ir 10. The stormwater runoff from the Site is not only causing severe 4 erosion along the northern boundary of St. Mary's cemetery, but adversely impacting Route 281. Lake Aff., if 9. In May 2014, Catholic Cemeteries of the Roman Catholic Diocese (Catholic Cemeteries) informed DEC that the erosion caused by stormwater runoff from the Site forced the Cemetery to disinter and move two bodies in early May 2014 and four bodies during the week of May 26, 2014. Catholic Cemeteries further informed DEC that two additional bodies would be disinterred and moved in the near future and that there will be others as well. In May 2014, DEC staff inspected the Site and observed there were no erosion or sediment controls in place and turbid stormwater runoff from the Project was causing severe erosion of St. Mary's property, overwhelming the DOT stormwater infrastructure and flooding State Route 281. Verified Complaint, if if 35-36. The flow of stormwater from the Site has not only transported sediment, gravel and dirt from the Site causing significant soil erosion on the St. Mary's property, the discharges have also opened the sides of monumented graves. The Project's illegal stormwater discharges have also desecrated other grave sites at St. Mary's by covering them with debris. The damage to St. Mary's Cemetery is disturbing to family members and friends of the people buried there, to the parishioners of St. Mary's, St. Margaret's and St. Anthony of Padua, and to other residents of Cortland and the surrounding area. Verified Complaint, irir 44-47. In May 2014, stormwater discharges were observed by DEC staff as traveling along the Project outlet channel on the southern boundary of the Site and then 5 discharging from the stone apron outlet downslope into a gully on St. Mary's Cemetery. This stormwater discharge was down cutting the land and flowing onto the cemetery grounds. The stormwater flow from the Site was so heavy that it was eroding and enlarging an existing drainage ditch, undercutting trees and shrubs, washing away soil from the foundations of several grave sites, and spreading debris on the cemetery grounds. The stormwater flow from the Site also displaced a large tree. On May 16, 2014, the highly turbid stormwater discharges were also flowing across Bellview Avenue and completely inundating the Route 281 stormwater collection system. The stormwater at this location flows through a culvert and into Tributary 2A of the West Branch Tioughnioga River, water index No. Sr-44-14-60- 2a and Class "C." Cook Aff., if if12, 13 Stevens' continuing refusal to comply with ECL Article 17 and failing to take appropriate steps to mitigate the impacts of the Project's stormwater discharges demonstrate a complete disregard for the DEC regulatory program designed to protect waters of the state. See Cook Aff., if 16. Likelihood of Additional Damage If corrective measures are not implemented, stormwater will continue to flow from the Site and cause additional damage to adjacent and nearby properties. Cook Aff., if 18. The continued flow of water from the Project will cause additional damage, including greater erosion of the gully that has been deepened and widened by stormwater discharges since the Project was constructed. Lake Aff., if if11, 16. 6 Unmitigated stormwater discharges from the Site will also continue to cause safety concerns at St. Mary's Cemetery and on Route 281. See Cook Aff., ii 18. Necessary Corrective Measures will not Pose a Significant Burden To prevent the ongoing erosion and flood damage caused by the Project, the storm water runoff from the 120 acre drainage area should be redirected back into its original existing channel and toward the west. This will allow the runoff to infiltrate into the ground and recharge the groundwater aquifer as it did prior to construction of the Project. Lake Aff., ii 12. Restoring the drainage flow pattern back to its original configuration can be accomplished by earth grading to reverse the current flow direction, plugging or removing the pond outlet piping, and eliminating the outlet channel downstream of the pond by compacting earth fill to the top of its banks. As discussed in the expert report attached to the Lake Aff. as Exhibit 1, this work can be accomplished for less than $10,000 (ten thousand dollars). Lake Aff., ir 13. Construction of the Project has not benefited Stevens in any identifiable way and Stevens will not suffer any harm (other than incurring excavation and construction costs) if he is required to abate the damage by restoring the drainage flow pattern back to its original configuration. See Lake Aff., ii 15. 7 ARGUMENT THE STATE IS ENTITLED TO A PRELIMINARY INJUNCTION DIRECTING STEVENS TO IMMEDIATELY CEASE VIOLATING THE ENVIRONMENTAL CONSERVATION LAW AND TO ABATE A NUISANCE 1. The State is Entitled to a Preliminary Injunction Requiring Stevens to Immediately Cease and Desist from Violating ECL Article 17. The usual three-prong test for injunctive relief does not apply when the basis of the nuisance is a violation of statute or regulation. New York v. Monaco Oil Co., 185 Misc.2d 742, 750 (Sup. Ct. Monroe Co. 2000) (citing Town of Throop v. Leema Gravel Beds, 249 A.D.2d 970 (4th Dep't 1998)); City of New York v. Bilynn Realty Corp., 118 A.D.2d 511 (1st Dep't 1986)). The State is entitled to a preliminary injunction here because it has the authority to enforce the ECL and has made a prima facie showing that Stevens violated the law. ECL §§ 71-1929 and 71-1931 authorize the State to bring an action for an injunction against any person violating ECL Article 17, including 6 NYCRR Part 750. By the statute's plain language, the State has the authority to bring an action to enjoin Stevens' actions and the State therefore satisfies the first prong of the test for injunctive relief. The stated purpose of ECL Article 17 Title 8 is to insure that all discharges of pollutants are permitted and meet all applicable requirements of the Federal Water Pollution Control Act, known as the Clean Water Act (33 U.S.C. 1251, et seq.). This objective is in part achieved through the 6 NYCRR § 750-1.4 permitting program which ensures that DEC has an opportunity to oversee discharges to the waters of the state from any outlet. By failing to apply for a permit and refusing to comply with Article 17, Stevens' violations of law are 8 undermining the stated purpose of the ECL Article 17, Title 8 permitting program. Cook Aff., if 17. Where the ECL authorizes the State to enjoin an ongoing violation, as it does here, the State is not required to show irreparable injury. See New York v. Brookhaven Aggregates, 121 A.D.2d 440, 442 (2d Dep't 1986). The State need only demonstrate that it has the authority to enforce the law at issue and make a prima facie showing that the defendant has violated the law. See New York v. Sour Mtn. Realty, Inc., 276 A.D.2d 8, 15-16 (2d Dep't 2000) (aprima facie showing that defendant violated the state Endangered Species Act was "sufficient to show irreparable harm" and therefore grant a preliminary injunction). The Third Department has expressly held that when the State has statutory authority to enjoin a violation, it is not necessary to show special damages or injury to the public as a condition to injunctive relief; evidence of commission of the prohibited acts is sufficient. Adirondack Park Agency v. Hunt Bros. Contrs., Inc., 234 A.D.2d 737, 738 (3d Dep't 1996). Thus, because ECL §§ 71-1929 and 71-1931 provide the authority to enjoin violations of the ECL Article 17, a violation of that law is sufficient to show irreparable harm and tip the equities in favor of the State, and the State need not establish all three elements of the traditional test for granting a preliminary injunction. See Sour Mtn. Realty, Inc., 276 A.D.2d at 15-16. The second element in the applicable test for granting a preliminary injunction to the State is a prima facie showing that Stevens has violated the laws that the State seeks to enforce. ECL § 17-0808 and 6 NYCRR § 750-1.4 prohibit the 9 construction of ponds, outlet channels, outfalls and other point sources that convey untreated stormwater without a DEC approved SWPPP. Stevens' failure to obtain either an individual or a general permit prior to constructing the Project that carries stormwater discharge is a continuing violation of ECL § 17-0808 and of 6 NYCRR § 750-1.4. Based on the facts set forth in the accompanying affidavit of Scott Cook and the Verified Complaint, the State has established the Stevens' violations of the ECL provisions regulating stormwater discharges. Cook Aff., if ii 6, 14-16. ECL § 17-0803 and 6 NYCRR § 750-1.4 prohibit the discharge of stormwater to any water of the State from any point source without a SPDES permit. Stevens' stormwater diversion Project has resulted in discharges of storm water mixed with sediment from the Site onto adjacent properties including St. Mary's and Route 281 and ultimately to the waters of the state. Cook Aff., iril12-14. Thus, Stevens' activities are violations of ECL Article 17, and the State therefore satisfies the applicable test for injunctive relief. 2. The State is Entitled to a Preliminary Injunction Requiring Stevens to Immediately Abate a Public Nuisance. A public nuisance includes conduct that is endangering or injuring the property, health, safety or comfort of a considerable number of persons. 532 Madison Ave. Gourmet Foods, Inc. v. Finlandia Ctr., Inc., 96 N.Y.2d 280 (2001); Copart Industries, Inc. v. Consolidated Edison Co., 41 N.Y.2d 564, 568 (1977). A public nuisance is subject to prosecution by the proper governmental authority for abatement. Copart Industries, Inc., 41 N.Y.2d at 568; 532 Madison Ave. Gourmet 10 Foods, Inc., 96 N.Y.2d at 292. It is well settled in New York that for a nuisance to constitute a public nuisance, the phrase "considerable number of persons" does not mean a very great number of persons. New York v. Kings County Iron Foundry, 209 N.Y. 207, 210 (1913); and New York v. Rubenfeld, 254 N.Y. 245, 247 (1930). Here, the affidavits of Scott Cook and Donald Lake make the prima facie case that discharges from the stormwater diversion Project are endangering or injuring the property, health, safety or comfort of a considerable number of persons. Cook Aff., ii 9; Lake Aff., iii! 9, 10. This harm associated with the unlawful stormwater discharges flowing onto adjacent and nearby properties is endangering a considerable number of persons in the use of St. Mary's Cemetery and Route 281. Verified Complaint, iii! 42, 43; Lake Aff., if 9. Stevens is liable for the damages caused by the unlawful stormwater discharges from the Project onto St. Mary's Cemetery and Route 281 because an abutting landowner is liable for the change in surface water flow associated with a pipe or a drainage ditch causing erosion. See Kossoff v. Rathgeb-Walsh, Inc., et al., 3 N.Y.2d 583, 588 (1958); and Osgood v. Bucking-Reddy, 202 A.D.2d 920, 921 (3d Dep't 1994). In fact, excavation activities alone that change or increase the flow of surface water and thereby cause damage to abutting property can trigger liability. Long v. Sage Estate Homeowners Assoc. Inc., et al., 16 A.D.3d 963, 975 (3d Dep't 2005). 11 Moreover, in December 2013, it was conclusively determined that St. Mary's Cemetery "was substantially damaged by runoff' from the Site. See Affirmation of Assistant Attorney General Joseph M. Kowalczyk, sworn to on the 13th day of November, 2014 (Kowalczyk Affirmation), Exhibit 2 - Catholic Cemeteries of the Roman Catholic Diocese vs. James C. Stevens, III., Decision And Order Dated December 16, 2013 (Hon. Phillip R. Rumsey). The harm caused by the unlawful Project discharges to St. Mary's Cemetery is disturbing to family members and friends of the people buried there, to the parishioners of St. Mary's, St. Margaret's and St. Anthony of Padua, and to other residents of Cortland an'd the surrounding area. Verified Complaint iii! 44-47. The harm caused by the stormwater diversion Project also extends to people traveling along Route 281. It is sufficient that the unlawful stormwater discharges from the Project have affected a considerable number of persons in the area of the Site. City of Johnstown v. Water Pollution Control Board of the State of New Yorh, 12 A.D.2d 218, 219 (3d Dep't 1961). For purposes of determining whether a nuisance is a public nuisance, travelers on a highway of a sparsely settled country town and those on a busy city street are equally a considerable number of persons. Kings County Iron Foundry at 210. Here, the State has shown that on at least one occasion during the past several months, the stormwater discharges associated with the Project caused flooding of Route 281, impeding use of the road. 12 3. The State also Meets the Traditional Three-Prong Test for Injunctive Relief. There is ample precedent for applying the applicable test described above, when, as here, the State seeks to enjoin statutory violations. See, e.g., Hunt Bros. Contrs., Inc., 234 A.D.2d at 737-38. However, even if the Court were to apply the traditional test for granting injunctive relief, the State would nonetheless satisfy all elements of that test. Well-settled law dictates that a preliminary injunction should issue when the plaintiff demonstrates: i) a likelihood of success on the merits; ii) irreparable injury absent granting of the injunction; and iii) a balancing of the equities favors the movant. See CPLR § 6301; Doe v. Axelrod, 73 N.Y.2d 748, 750 (1988); Emerald Green Prop. Owners Assn. v. Jada Developers, LLC, 63 A.D.3d 1396, 1397 (3d Dep't 2009). The State will likely succeed on the merits The first element that a plaintiff must establish in an action for preliminary injunction is likelihood of success on the merits. The purpose of a preliminary injunction is to maintain the status quo pending a decision on the merits in order to prevent unlawful harm that might otherwise arise. See Lew Beach Co. v. Carlson, 57 A.D.3d 1153, 1155-56 (3d Dep't 2008). The moving parties need only make a prima facie showing of their right to relief, they do not need to prove the case. Tucl?er v. Toia, 54 A.D.2d 322, 326 (4th Dep't 1976); see J.A. Preston Corp. v. Fabrication Enters., Inc., 68 N.Y.2d 397, 406 (1986); Peterson v. Corbin, 275 A.D.2d 35, 37 (4th Dep't 2000). 13 Here, the State has made more than a prima facie showing that it is likely to succeed on the merits. It can't be disputed that Stevens constructed the stormwater diversion Project without a SWPPP and has discharged stormwater into a drainage ditch and ultimately the waters of the state without a SPDES permit. As set forth above, these acts and omissions are straight forward violations of ECL Article 17 and the applicable regulations. As set forth above, Stevens' failure to obtain a permit prior to constructing the Project, failure to implement a DEC approved SWPPP, and the discharges of stormwater violate ECL Article 17 and 6 NYCRR § 750-1.4. Cook Aff., iii! 12-16. Moreover, even if there were questions of fact for trial, this wouldn't preclude the court from granting an injunction. Emerald Green v. Jada at 1397. The injury that the State seeks to enjoin is irreparable The second element that a plaintiff must establish in an action for preliminary injunction is irreparable harm. The tes